upremc  Court  of  %  United  Stales. ' 


JVo.  1063, 


THE  COUNTY  OF  SAN  MATEO,  Plaintiff  in  Error, 

vs. 

THE  SOUTHERN  PACIFIC  RAILROAD  COMPANY, 

Defendant  in  Error. 


ARGUMENT  OF  S.  W.  SANDERSON,  Esq.,  COUNSEL   FOR   DE- 
FENDANT. 


Mr.  Sanderson  said  : 

May  it  please  the  Court,  before  commencing  my  argu- 
ment, I  desire  to  make  one  or  two  observations  in  relation 
to  certaiu  misconceptions  of  counsel  in  the  very  able  and 
forcible  arguments  which  have  been  made  upon  the  other 
side.  Counsel  have  put  us  in  the  position  of  maintaining 
propositions  which  we  do  not  "maintain.  We  have  been 
misunderstood  or  misrepresented.  It  has  been  assumed 
upon  the  other  side,  first,  that  we  maintain  the  proposi- 
tion that  this  question  of  "  due  process  of  law "  imports 
into  the  taxing  system  of  the  States  judicial  proceedings 
or  methods  in  the  matter  of  making  assessments  or  ascer- 
taining the  value  of  property  for  the  purposes  of  taxation. 
We  maintain  no  such  doctrine.  On  the  contrary,  we  ad- 
mit that  "  due  process  of  law  "  does  not  require  a  resort 
to  judicial  proceedings  in  the  matter  of  assessments;  that 


taxes  may  be  levied  and  collected  in  a  summary  manner 
by  administrative  boards  and  officers  without  the  interven- 
tion of  any  of  those  proceedings  which  are  appropriate, 
and  which,  in  the  administration  of  justice,  are  generally 
employed  by  the  courts.  All  we  claim  on  that  head  is 
this  :  that  at  some  stage  of  the  proceedings,  between  the 
commencement  and  the  time  at  which  the  assessment  be- 
comes final,  the  taxpayer  shall  have  notice,  or  an  oppor- 
tunity to  be  heard  as  to  the  value  of  his  property,  before 
the  assessor,  or  before  some  other  officer  or  board  ap- 
pointed by  law. 

Again,  we  have  been  placed  in  the  position  of  claiming 
that  it*  is  an  indispensable  feature  in  tax  laws  that  a  board 
of  equalization  should  be  provided,  before  which  tax- 
payers may  go  for  the  purpose  of  having  their  assessments 
as  made  by  the  assessor  reviewed.  We  have  contended 
for  no  such  proposition.  Our  position  on  that  head  is 
this :  that  if  the  State  creates  a  board  of  equalization  for 
a  portion  of  its  taxpayers,  and  enables  them  to  have  a  re- 
view before  such  board  of  the  action  of  the  assessor,  then 
we  say  it  is  the  duty  of  the  State  also  to  furnish  a  board 
of  equalization  for  all  other  taxpayers. 

It  is  also  stated  upon  the  other  side  that  we  claim  that 
the  Fourteenth  Amendment  to  the  Federal  Constitution 
prohibits  the  States  from  passing  any  laws,  except  such  as 
shall  act  equally  and  uniformly  upon  all  persons  and  upon 
all  things  in  the  State.  We  make  no  such  claim.  Our 
position  upon  that  point  is,  that  the  Fourteenth  Amend- 
ment requires  that  State  legislation  shall  operate  equally 
and  uniformly  upon  all  persons  and  upon  all  things  upon 
which  it  is  designed  to  operate  at  all ;  that  is  to  say,  upon 
all  persons  and  all  things  which  stand  in  the  same  category, 
or  stand  in  the  same  relation  to  the  law. 

For  example,  a  law  in  relation  to  bishops,  and  affecting 
bishops  only,  is  a  general  law ;  and  if  it  operates  upon 
bishops  only,  and  yet  operates  equally  upon  them  all,  there 


3 

can  be  no  objection  to  it  on  the  score  of  validity.  We 
only  hold  in  this  respect,  that  tax  laws  shall  operate  equally 
and  uniformly  upon  the  property  which  is  taxed,  and 
upon  the  owners  of  such  property;  not  that  they  shall 
operate  universally  upon  all  persons  or  upon  all  kinds  of 
property.  We  do  not  claim  that  it  is  not  within  the  power 
of  the  States  to  select  certain  kinds  or  classes  of  property 
for  taxation,  and  exempt  from  taxation  all  other  property. 
All  we  claim  is  that  when  a  State  has  selected  property  for 
the  purpose  of  taxation,  it  must  employ  the  same  system, 
mode,  and  method,  in  '  ascertaining  the  value  of  all  such 
property,  and  must  impose  upon  all  of  it,  without  discrimi- 
nation, the  same  burden,  or  rate  of  taxation.  This  much 
in  explanation  of  the  propositions  for  which  we  contend. 

May  it  please  the  Court,  there  is  a  preliminary  question, 
presented  by  the  record  in  this  case  which,  so  far,  has  not 
been  considered  by  counsel,  and  to  which  it  is  necessary  to 
call  the  attention  of  the  Court  for  a  few  moments.  The 
question  is,  whether  a  certain  apparent  statute  of  the  State 
of  California  is  law  or  is  not  law.  If  your  honors  will 
turn  to  page  12  of  my  brief  you  will  find  there  quoted 
section  3664  of  the  political  code  of  the  State  of  California. 
On  page  14,  a  little  below  the  middle  of  the  page,  you  will 
find  a  bracket,  the  next  word  being  "  respectively."  The 
validity  of  the  remainder  of  that  section,  from  the  bracket 
on,  is  challenged  by  us.  The  history  of  this  bill  is  this  : 
In  1880  the  legislature  passed  an  act 

The  Chief  Justice — Is  all  before  that  bracket  good  and 
valid  ? 

Mr.  Sanderson — Yes,  sir. 

The  Chief  Justice — It  is  only  this  part  after  the  bracket 
that  has  been  disputed  ? 

Mr.  Sanderson — Yes,  sir.  It  may  seem  strange  that  we 
should  question  the  validity  of  a  portion  of  the  act  and  not 
the  whole,  for  it  would  seem  that  if  a  portion  of  the  act  was 
invalid  the  whole  would  be;  that  I  am   about  to  explain. 


In  1880  an  act  was  passed  amending  certain  enumerated 
sections  of  the  political  code  and  adding  two  new  sections. 
The  constitution  of  California  requires  that  the  title  to  a  bill 
shall  state  the  subject;  that  the  bill  shall  have  but  one 
object,  and  that  such  object  shall  be  expressed  in  its  title. 
Now,  it  did  not  appear  clearly  in  the  title  to  this  bill  to 
what  subject  these  two  new  sections  related,  nor  to  what 
code  they  were  to  be  added,  and  therefore  it  was  considered 
doubtful  wThether  the  title  of  the  bill  satisfied  the  calls  of 
the  constitution  in  that  respect.  The  question  was  mooted 
whether  this  legislation  was  valid  legislation  or  not;  and 
hence,  at  the  next  session  of  the  legislature,  it  was  proposed 
to  amend  the  title  of  the  act  so  as  to  make  it  conform  to  the 
requirements  of  the  constitution.  A  bill  was  introduced  in 
the  assembly — a  verbatim  copy  of  the  act  of  1880,  with  the 
exception  of  the  title — which  was  amended  so  as  to  express 
the  subject  of  these  two  new  sections  and  the  code  to  which 
they  were  to  be  annexed.  It  passed  the  assembly  in  that 
form  and  was  transmitted  to  the  senate.  The  senate 
amended  section  3664  by  adding  that  portion  of  the  section 
which,  in  my  brief,  is  inclosed  in  brackets.  It  was  then  re- 
turned to  the  assembly  for  their  concurrence.  Upon  a  call 
of  the  ayes  and  noes,  it  received  only  forty  votes  in  the 
affirmative,  but  the  speaker  declared  that  it  was  carried. 

Now  your  honors  will  see  that  the  first  part  of  the  bill  of 
1881  consists  of  previous  legislation.  After  the  passage  of 
the  bill  of  1881,  the  Supreme  Court  held  that  there  was  no 
defect  in  the  title  to  the  bill  of  1880,  and  therefore  that  such 
previous  legislation  was  valid. 

The  Chief  Justice — Did  the  Governor  approve  the 
original  bill  ? 

Mr.  Sanderson — Yes,  sir,  he  approved  the  original  and 
also  approved  this.  But  if  this  whole  bill  be  regarded  as 
unconstitutional  still  the  old  law  has  been  decided  to  be 
constitutional  by  the  Supreme  Court,  and  it  is  therefore  only 


the    validity  of  that  portion    included  in   brackets  which 
comes  to  this  Court  for  consideration. 

The  constitution  of  the  State  of  California  requires  that 
every  bill  before  it  shall  become  a  law  shall  be  read  three 
times,  shall  be  passed  upon  a  call  of  the  ayes  and  noes,  and 
shall  not  become  a  law  unless  it  receives  a  concurrence  of 
a  majority  of  all  the  members  elected  to  each  house.  The 
constitution  fixes  the  number  of  members  of  the  senate  at  40, 
and  the  number  of  members  of  the  assembly  at  80. 
Therefore,  in  order  to  pass  a  bill  through  the  assembly,  it 
is  necessary  that  it  should  receive  the  concurrence  of  41 
members,  if  80  members  have  been  elected.  The  journals 
and  statutes  show  that  the  assembly  was  full;  that  there 
were  80  members.  The  certified  copy,  which  I  have  intro- 
duced, of  the  written  journal  shows  that  the  'measure  re- 
ceived only  40  votes,  being  one  less  than  a  constitutional 
majority. 

The  Chief  Justice — What  was  the  extract  which  you 
have  put  into  your  original  brief,  taken  from? 

Mr.  Sanderson — That  was  taken  from  the  printed  journal. 

The  Chief  Justice — And  your  claim  now  is  that  the 
printed  journal  differed  from  the  written  journal  ? 

Mr.  Sanderson — Yes ;  the  printed  journal  differed  in 
this  :  the  count,  as  given  in  both  the  printed  and  written 
journal,  is  39,  and  is  erroneous.  A  count  of  the  names  in 
the  printed  journal  shows  41,  which  is  enough  to  pass  the 
bill.  In  the  written  journal  a  count  of  the  names  shows  40. 
That  is  one  more  than  the  count,  as  there  stated,  shows, 
but  not  enough  to  pass  the  bill. 

Mr.  Justice  Gray — Is  there  any  provision  in  the  con- 
stitution as  to  reviewing  that  matter  by  the  courts,  or  any 
decision  by  the  Supreme  Court  as  to  how  far  that  is  matter 
of  judicial  investigation? 

Mr.  Sanderson — There  has  been  no  decision  by  the 
court  on  that  subject.     Our  constitution  is  young  yet,  and 


6 

this  question  has  not  been  before  them,  or  at  least  has  not 
been  decided,  so  tar  as  I  am  advised. 

Mr.  Justice  Gray — And  there  was  no  such  provision  in 
your  former  constitution  ? 

Mr.  Sanderson — There  was  no  such  provision  in  the  old 
constitution.  The  new  constitution  and  the  codes  provide 
that  journals  shall  be  kept  of  the  proceedings  of  the  legis- 
lature, in  which  shall  be  entered  minutes  of  transactions  as 
they  occur,  and  that  they  shall  be  read  each  morning  by 
the  secretary,  and  approved  and  signed  by  the  presiding 
officers — the  Speaker  of  the  Assembly,  or  the  President  of 
the  Senate,  as  the  case  may  be.  The  Code  of  Civil  Pro- 
cedure provides  that  these  journals  shall  be  competent  evi- 
dence to  prove  the  transactions  of  the  legislature.  They 
are  evidence  of  a  better  character,  and  of  a  higher  grade 
than  the  printed  statutes.  Therefore,  there  can  be  no  ques- 
tion but  what  the  constitution  and  the  legislation  of  the 
State  of  California,  in  relation  to  this  subject,  was  intended 
to  provide  additional  safeguards  in  respect  to  the  passage 
of  bills  which  had  not  been  provided  in  the  old  constitu- 
tion. 

The  history  of  legislative  bodies  in  this  country  shows 
that  bad  measures  sometimes  become  laws  through  vicious 
practices  and  methods.  Measures  have  been  allowed  to 
pass  by  the  mere  vote  of  a  majority  of  a  quorum.  Hence, 
to  obviate  this  mischief,  real  or  supposed,  these  provisions 
of  the  new  constitution  were  inserted;  and  the  only  ques- 
tion is,  can  the  courts  go  behind  the  printed  statutes  and 
behind  the  enrolled  bills  deposited  in  the  office  of  the  Sec- 
retary of  State  for  the  purpose  of  ascertaining  whether  a 
law  has  been  enacted  in  the  manner  and  by  the  vote  re- 
quired by  the  constitution  ?  There  is  no  question  about 
the  fact  that  a  bill  which  does  not  receive  the  constitu- 
tional majority  cannot  become  a  law.  The  only  question 
is,  may  you  look  into  the  journals  for  the  purpose  of  ascer- 
taining what  did  and  what  did  not  become  a  law  ? 


I  will  not  spend  any  time  on  that  question.  This  provi- 
sion of  our  constitution  was  borrowed  from  the  constitu- 
tion of  the  State  of  Illinois.  The  decisions  in  that  State 
are  numerous  and  conclusively  with  us  on  that  subject. 
They  are  cited  in  my  brief.  There  are  also  two  decisions 
by  this  Court  to  the  same  effect — both,  I  think,  by  Mr.  Jus- 
tice Miller — in  which  he  holds  substantially :  that  it  is 
the  duty  of  the  courts  to  find  and  declare  the  common  law, 
and  that  it  is  no  less  their  duty  to  find  and  declare  the  writ- 
ten or  statutory  law.  Therefore,  it  is  their  duty,  in  investi- 
gating that  question,  to  examine  all  competent  testimony — 
made  so  by  legislation — for  the  purpose  of  ascertaining  and 
determining  whether  a  law  has  passed  a  legislative  body  in 
conformity  with  constitutional  requirements.  These  cases 
are  also  cited  in  my  brief.  It  has  been  held  everywhere — 
where  similar  provisions  exist — that  this  may  be  done. 
The  authorities  cited  upon  the  other  side,  from  the  State  of 
California,  were  rendered  under  the  old  constitution,  which, 
as  already  stated,  contained  no  provisions  similar  to  those 
which  are  found  in  the  new  constitution.  Those  authori- 
ties are,  therefore,  not  in  point.  It  has  been  held  in  States 
where  such  constitutional  provisions  do  not  exist,  that  you 
cannot  go  behind  the  enrolled  bills;  but  where  these  pro- 
visions do  exist,  it  has  been  universally  held  that  you  may 
go  behind  the  enrolled  bills  and  read  the  journals. 

Mr.  Justice  Bradley — You  are  aware  of  the  case  in 
New  Jersey,  I  suppose  ? 

Mr.  Sanderson — I  do  not  remember  the  case. 

Mr.  Justice  Bradley — I  contended  very  strenuously,  as 
you  do,  that  the  journal  should  decide  the  case,  but  the 
court  of  appeals  reversed  me. 

Mr.  Sanderson — Are  there  any  su2h  constitutional  pro- 
vision in  New  Jersey  as  we  have  here  ? 

Mr.  Justice  Bradley — Exactly  the  same. 

Mr.  Sanderson — Then  I  think  your  honor  was  right,  and 
the  court  of  appeals  was  wrong.     The  question  as  to  the  va- 


8 

lidity  of  this  part  of  section  3664  becomes  important  when 
you  come  to  consider  the  question  whether  the  taxing  system 
of  the  State  of  California  affords  the  defendant  an  opportu- 
nity to  be  heard  at  some  stage  of  the  proceedings,  because  it 
is  in  that  portion  of  section  3664  that  the  proceedings  are 
authorized  upon  which  the  other  side,  in  the  court  below, 
chiefly  relied  for  the  purpose  of  showing  that  an  opportunity 
to  be  heard  is  given. 

It  is  claimed  by  the  counsel  upon  the  other  side  that  we 
are  not  within  the  guaranties  of  the  Fourteenth  Amend- 
ment, first,  because  we  are  not  a  "  person" ;  second,  because 
we  are  not  a  colored  person;  and  third,  because  the  laws 
of  which  we  complain  are  not  the  laws  referred  to  in  that 
amendment. 

The  proposition,  may  it  please  the  Court,  that  corpora- 
tions are  not  included  in  the  word  "  person  "  as  used  in 
that  amendment,  is  at  least  a  startling  one.  I  have  been  to 
the  trouble  of  collecting  some  facts  in  relation  to  the  number 
of  corporations  in  the  country  and  the  amount  and  value  of 
their  assests  or  property.  Of  course  it  was  a  difficult  matter 
to  ascertain  fully  and  with  entire  satisfaction,  but  from  the 
returns  which  I  was  able  to  reach,  I  found  that  the  insurance 
companies  of  this  country  number  not  less  than  1,600,  and 
that  their  aggregate  assets  are  not  less  than  $99,000,000. 
There  are  more  than  5,000  mining  corporations,  the  value 
of  whose  claims  and  other  property  it  is  impossible  to  state. 

There  are  more  than  2,000  national  banks,  with  assets 
valued  at  more  than  $2,000,000,000.  There  are  doubtless 
a  large  number  of  other  bank  corporations  which  are  not 
national,  and  whose  assets,  or  their  value,  I  have  no  means 
of  ascertaining. 

There  are  in  the  United  States  and  Territories  not  less  than 
1,500  railroad  corporations,  operating  not  less  than  110,000 
miles  of  railroads,  with  property  and  assets  of  not  less  than 
$6,000,000,000. 

In  addition  to  these  business  and  trading  corporations, 


9 

there  are  scattered  throughout  the  length  and  breadth  of 
the  country,  in  every  town,  village,  and  city,  educational, 
religious,  eleemosynary,  and  sanitary  corporations  without 
number,  with  property  of  a  value  which  we  have  no  means 
of  knowing.  Now,  it  may  be  that  all  these  corporations 
and  all  these  stockholders  are  without  the  protection  of  the 
Fourteenth  Amendment;  but,  if  it  be  so,  there  should  be 
some  surer  foundation  for  such  a  conclusion  than  the  emas- 
culating construction  of  the  word  "person."  If  we  look 
to  the  literature  of  the  law,  from  time  immemorial  down  to 
the  present  time,  we  find  that  corporations  are  spoken  of 
and  treated  as  legal  persons.  We  find  that  Mr.  Blackstone, 
in  his  work  upon  the  Rights  of  Persons,  devotes  a  chapter 
to  corporations,  and  states  that  persons  are  divided  into 
classes — natural  and  artificial.  That  natural  persons  are 
such  as  God  has  made  us,  and  artificial  persons  are  such  as 
the  law  has  made  them. 

Chancellor  Kent  does  the  same.  He  gives  a  chapter  to 
corporations  in  his  work  on  the  Rights  of  Persons. 

Nowhere  has  it  ever  been  asserted  that,  in  the  matter  of 
the  acquisition,  possession,  and  enjoyment  of  property,  a 
corporation  was  not  a  person  within  the  meaning  of  any 
law,  notwithstanding  the  word  "  corporation"  was  not  em- 
ployed. 

Very  little  attention  has  been  paid,  if  the  Court  please,  to 
the  authorities  upon  this  subject.  I  desire  to  refer  your 
honors  to  some  of  the  authorities  upon  the  question,  which 
I  think  are  conclusive.  In  the  time  of  Henry  the  Eighth 
a  statute  was  passed  which  imposed  the  burden  of 
building  and  repairing  bridges  upon  the  inhabitants 
of  the  town,  city,  or  county  in  which  they  were  sit- 
uated. Lord  Coke,  in  commenting  on  that  statute, 
held  that  corporations  were  embraced  within  it,  and 
that  a  corporation  was,  within  the  purview  and  mean- 
ing of  that  statute,  an  inhabitant  of  the  town  or 
2s 


10 

county.  Chief  Justice  Marshall  had  occasion  to  refer  to 
this  in  the  first  case  before  this  Court  involving  the  ques- 
tion as  to  what  is  the  legal  status  of  a  corporation.  Before 
that,  however,  in  Rex.  vs.  Gardner,  Chief  Justice  Mansfield 
had  decided  that  a  corporation  was  an  "  occupier,"  within 
the  meaning  of  a  statute  in  regard  to  certain  poor  rates 
which  were  not  assessed  against  the  occupant  of  the  land, 
because  there  was  no  occupant — the  land  belonging  to  a 
corporation.  He  (Mansfield)  held  that  a  corporation  was 
an  "  occupier  "  within  the  meaning  of  that  law.  The  com- 
ment of  Coke  and  the  decision  of  Mansfield  came  before 
this  Court  in  the  case  of  the  United  States  vs.  Deveaux,  in 
5  Cranch,  61.  The  question  was  whether  a  corporation 
was  a  citizen  of  the  United  States  within  the  meaning  of 
the  constitutional  provision  which  confers  jurisdiction  upon 
the  Federal  courts  over  controversies  between  citizens  of 
different  States ;  and  it  was  contended  that  a  corporation 
could  not  be  regarded  in  any  sense,  as  a  citizen,  and  that 
this  Court  had  no  jurisdiction  over  a  controversy  between 
a  corporation  and  tbe  citizens  of  another  State.  Chief 
Justice  Marshall,  however,  swept  the  cobweb  from  his 
path  and  looked  behind  the  shadow  at  the  substance,  and 
there  he  found  natural  persons,  though  a  corporation,  hav- 
ing the  rights  of  natural  persons,  which  they  were  endeav- 
oring to  assert  in  their  behalf;  and  he  held  that  these  per- 
sons were  not  to  be  deprived  of  their  rights  as  citizens  of 
the  United  States  because  they  had  organized  themselves 
into  a  corporation,  and  that  they  were  "  persons  "  within 
the  meaning  of  that  clause  of  the  Federal  Constitution. 

The  same  question  came  up  again  in  the  reverse  form. 
An  attempt  was  made  to  bring  the  Baltimore  and  Ohio 
Railroad  Company  into  the  circuit  court  of  the  United 
States,  and  that  corporation  pleaded  to  the  jurisdiction  of 
the  court  upon  the  ground  that  it  was  not  a  person,  but  was 
a  corporation,  and,  therefore,  was  not  bound  to  answer  in 


11 

the  Federal  courts.     Mr.  Justice    Grier   disposed  of  that 
question  in  a  very  summary  manner.     He  said  : 

%'A  corporation,  it  is  said,  is  an  artificial  person,  a  mere 
legal  entity,  invisible  and  intangible." 

Then  he  goes  on  and  argues  the  question  upon  that  head, 
and  he  winds  up  with  this  language : 

"  But  these  important  faculties,  conferred  on  them  by 
State  legislation,  for  their  own  convenience,  cannot  be 
wielded  to  deprive  others  of  acknowledged  rights.  It  is  not 
reasonable  that  those  who  deal  with  such  persons  should  be 
deprived  of  a  valuable  privilege  by  a  syllogism,  or  rather 
sophism,  which  deals  subtly  with  words  and  names,  without 
regard  to  things  or  persons  they  are  used  to  represent." 

It  is  a  little  singular,  if  true,  that  if  a  corporation,  under 
the  laws  of  England,  can  be  "  an  inhabitant,"  "an  occupier," 
can  be  a  person,  an  individual,  and  an  inhabitant  under  the 
laws  of  some  of  our  own  States,  and  cease  to  be  either 
when  we  come  to  consider  the  question  whether  they  are 
"  persons  "  under  the  Fourteenth  Amendment.  If  they  are 
"  persons  "  under  one  clause  of  this  Constitution,  they  must 
be  "  persons,"  also,  under  other  clauses  of  the  Constitution 
which  deal  with  the  same  or  cognate  subjects.  Wherever 
their  rights  are  affected,  wherever  their  property  is  affected, 
they  are  persons,  as  was  held  by  Mr.  Justice  Story  in  the 
next  case  to  which  I  shall  refer.  The  case  of  the  United  States 
vs.  Amedy,  11  Wheaton,  392,  was  a  criminal  prosecution 
under  a  law  which  made  it  a  felony  for  any  person  to 
destroy  a  vessel  upon  the  high  seas  with  the  intent  to  injure 
the  underwriters.  The  underwriter  in  that  case  was  a  cor- 
poration— the  Boston  Insurance  Company.  No  mention 
was  made  in  the  statute  of  a  corporation.  The  language 
was,  "  shall  burn  or  destroy  any  ship  or  vessel,  of  which  he 
is  owner  in  part  or  in  whole,  or  in  anywise  direct  or  pro- 
cure the  same  to  be  done,  with  intent  or  design  to  preju- 


12 

dice  any  person  or  persons  that  hath  underwritten  or  shall 
underwrite,"  &c. 

The  question  was  whether  this  Boston  Insurance  Com- 
pany being  a  corporation  was  a  "  person  "  within  the  mean- 
ing of  that  statute.  Mr.  Justice  Story  in  delivering  the 
opinion  of  the  court,  among  other  things,  said  : 

"  If  there  had  been  any  settled  course  of  decision  on  this 
subject  in  criminal  cases,  we  should  certainly,  in  a  prosecu- 
tion of  this  nature,  yield  to  such  a  construction  of  that  act, 
but  there  is  no  such  course  of  decisions.  The  mischief  in- 
tended to  be  reached  by  the  statute  is  the  same  whether  it 
respects  private  or  corporate  persons.  That  corporations 
are  in  law  for  civil  purposes  deemed  persons,  is  unquestion- 
able." 

Mark  the  last  sentence — "  That  corporations  are  in  law 
for  civil  purposes  deemed  persons  is  unquestionable."  Take 
another  case  that  occurred  in  those  times  when  there  was 
no  difficulty  in  holding  that  a  corporation  was  a  person, 
when  it  had  occasion  to  invoke  the  general  principles  of  law 
for  the  purpose  of  protecting  its  property.  We  find  in  8 
Wheaton  another  case  which  arose  under  the  treaty  of  peace 
between  the  United  States  and  Great  Britain,  the  sixth  ar- 
ticle of  which  provided :  "  That  there  should  be  no  future 
confiscation  made  nor  any  prosecution  commenced  against 
any  person  or  persons  for  or  by  reason  of  the  part  which  he 
or  they  may  have  taken  in  the  war,  and  that  no  person 
should,  on  that  account,  suffer  any  future  loss  or  damage 
either  in  his  person,  liberty,  or  property." 

The  word  "  person  "  is  used  here  and  such  pronouns  as 
are  employed  in  designating  natural  persons.  The  case 
showed  that  an  English  corporation  before  the  war  had 
owned  land  in  the  State  of  Vermont,  that  the  State  of  Ver- 
mont had  confiscated  that  land  and  granted  it  to  the  town 
of  New  Haven.  The  English  corporation  interposed,  and 
sought  the  protection  of  this  sixth  article  of  the  treaty,  and 
its  rights  were  contested  upon  the  ground  that  it  was  not  a 


18 

"  person  "  within  the  meaning  of  that  treaty ;  that  the  treaty 
did  not  refer  to  corporations  ;  that  the  word  "  person  "  was 
used  in  connection  with  pronouns  which  indicated  a  natural 
person,  and  could  have  no  application,  grammatically,  to  an 
artificial  person.  The  court  rejected  that  kind  of  logic  and 
held  that  a  corporation  in  England  was  a  "  person  "  within 
the  meaning  of  that  treaty,  because  the  corporation  was 
within  the  reason  and  philosophy  of  that  portion  of  the 
treaty,  in  that  it  owned  property,  and  the  purpose  of  the 
treaty  was  to  protect  that  property  against  confiscation  ; 
and  that  it  stood,  so  far  as  the  merits  of  the  question  was 
concerned,  in  precisely  the  same  relation  to  the  treaty  in 
which  a  uatural  person  stood,  and  was  therefore  entitled  to 
the  same  consideration  and  protection. 

The  authorities  upon  this  subject  are  so  numerous  that  it 
seems  like  a  waste  of  time  to  refer  to  them.  I  defy  the 
gentlemen  upon  the  other  side  to  produce  a  single  case  in 
which  it  has  been  held  that  a  corporation,  in  respect  to  the 
possession  and  enjoyment  of  its  property,  whenever  it 
seeks  to  enforce  its  rights,  or  whenever  the  law  seeks  to 
impose  upon  it  any  burdens  or  obligations,  is  not  re- 
garded as  a  person,  whether  the  word)  "  corporation  "  occurs 
in  the  law  or  not. 

Take  the  case  of  The  People  vs.  Utica  Insurance  Com- 
pany, (15  Johnson,  508.)  There  the  Supreme  Court  of  New 
York  held  that  a  statute  restraining  any  person  from  doing 
certain  acts  applied  as  well  to  corporations  or  bodies  poli- 
tic, although  not  mentioned. 

In  the  case  of  The  Planters'  Bank  vs.  Andrews,  (8  Porter, 
404,)  it  was  held  that  a  corporation  was  a  person  within  the 
meaning  of  the  attachment  laws  of  Alabama,  although  cor- 
porations were  not  named. 

In  The  State  vs.  Nashville  University,  (4  Humphreys, 
166,)  it  was  held  that  a  corporation  fell  within  the  meaning 
of  the  word  "  person  "  in  a  statute  which  directed  the  Land 


14 

Office  to  be  opened  for  the  reception  of  entries  by  all  and 
every  person  or  persons. 

This  Court,  in  the  Sinking  Fund  cases,  has  made  no  dis- 
tinction between  persons  and  corporations,  but  has  placed 
them  in  the  same  category.  Mr.  Chief  Justice  Waite,  in 
delivering  the  opinion  of  the  Court  in  those  cases,  says: 

"  The  United  States  cannot,  any  more  than  a  State,  inter- 
fere with  private  rights  except  for  legitimate  governmental 
purposes.  They  are  not  included  within  the  constitutional 
prohibition,  which  prevents  States  from  passing  laws  im- 
pairing the  obligation  of  contracts;  but,  equally  with  the 
States,  they  are  prohibited  from  depriving  persons  or  corpo- 
rations of  property  without  due  process  of  law." 

In  this  clause,  as  to  "  due  process  of  law,"  wherever  it 
occurs,  only  the  word  "  person  "  is  used  ;  the  word  "  cor- 
poration" is  not  used.  Nowhere  in  the  books,  nowhere  in 
Magna  Charta,  nowhere  in  any  State  constitution,  nowhere 
in  the  Constitution  of  the  United  States,  do  you  find  the 
word  "  corporation  "  in  the  clause  in  relation  to  due  pro- 
cess of  law.  And  yet  no  one  has  ever  pretended  until  now 
that  it  does  not  protect  artificial  as  well  as  natural  persons. 
The  research  of  counsel  upon  the  other  side  has  failed  to 
find  a  case  in  which  any  distinction  has  been  made,  in  this 
respect,  between  corporations  and  natural  persons.  This 
failure  is  significant. 

If  the  Court  please,  there  are  some  authorities  upon  this 
question  directly  in  point,  some  of  which  are  opposed  to  the 
position  which  we  take,  and  others  in  favor  of  it.  And  first 
on  the  list  is  a  case  decided  in  Louisiana,  in  the  circuit 
court  of  the  United  States,  by  his  honor  Mr.  Justice  Woods. 
That  was  a  case  in  which  the  city  of  New  Orleans  had,  by 
ordinance,  imposed  a  tax  upon  foreign  insurance  companies 
doing  business  in  that  city  to  double  the  amount  of  that 
which  the  ordinance  imposed  upon  domestic  insurance  cor- 
porations. A  corporation  organized  under  the  laws  of  the 
State  of  New  York,  engaged  in  the  insurance  business  in 


15 

New  Orleans,  contested  the  validity  of  that  ordinance  under 
the  Fourteenth  Amendment,  claiming  that  it  was  a  "per- 
son" within  the  meaning  of  that  amendment;  and  that  was 
the  only  question  which  was  considered  by  the  court.  Mr. 
Justice  Woods,  in  delivering  the  opinion  in  that  case,  said, 
among  other  things  : 

"  The  word  i  person  '  occurs  three  times  in  the  first  sec- 
tion in  the  following  connections  :  4  All  persons  born  or  nat- 
uralized in  the  United  States;'  *  *  *  '  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  &c. ;' 
'  nor'  shall  any  State  *  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws.'  The  complainants 
claim  that  this  last  clause  applies  to  corporations — artificial 
persons." 

Now  attend  to  the  reasoning  of  the  learned  judge  : 

"  Only  natural  persons  can  be  born  or  naturalized  ;  only 
natural  persons  can  be  deprived  of  life  or  liberty;  so  that  it  is 
clear  that  artificial  persons  are  excluded  from  the  provisions 
of  the  first  two  clauses  just  quoted.  If  we  adopt  the  con- 
struction claimed  by  complainants,  we  must  hold  that  the 
word  'person,'  where  it  occurs  the  third  time  in  this  sec- 
tion, has  a  wider  and  more  comprehensive  meaning  than  in 
the  other  clauses  of  the  section  where  it  occurs.  This 
would  be  a  construction  for  which  we  find  no  warrant  in 
the  rules  of  interpretation.  The  plain  and  evident  meaning 
of  the  section  is  that  the  persons  to  whom  the  equal  protec- 
tion of  the  law  is  secured,  are  persons  born  or  naturalized 
or  endowed  with  life  and  liberty,  and  consequently  natural 
and  not  artificial  persons." 

Now,  with  all  due  respect  to  the  learned  judge  who  de- 
livered the  opinion  in  that  case,  I  think  his  reasoning  is 
subject  to  the  criticism  of  Mr.  Justice  Grier  in  answering  a 
similar  objection  in  the  case  of  the  Baltimore  and  Ohio 
Railroad  Company,  where  he  said  that  persons  were  not  to 
be  deprived  of  their  constitutional  rights  by  a  syllogism  or 
sophism  which  deals  cunningly  with  words  to  the  disregard 
of  names  and  things. 


16 

The  reasoning  of  the  learned  judge  is  this  : 

"  Persons  are  born  or  naturalized  ;  corporations  are  not 
born  or  naturalized.     Ergo,  corporations  are  not  persons." 

Now,  this  is  a  syllogism,  and  syllogistic  reasoning  is  un- 
safe reasoning  when  we  come  to  ascertain  the  meaning  of 
words  contained  in  a  statute  or  constitution.  It  is  as  apt 
to  lead  to  erroneous  conclusions  as  a  reference  to  grammat- 
ical rules  for  the  same  purpose,  or  even  more  so.  Now  let 
us  test  the  virtue  of  this  syllogism  by  applying  it  to  a  case 
with  which  we  are  all  familiar.  According  to  Moses's  ac- 
count of  the  matter,  Adam  and  Eve  were  not  born  nor  natu- 
ralized ;  they  were  created.  Vary  the  syllogism  of  the 
learned  judge  and  apply  it  to  their  case.  Corporations  are 
not  born  or  naturalized,  but  created ;  Adam  and  Eve  were 
not  born  or  naturalized,  but  created ;  therefore  Adam  and 
Eve  were  corporations.  Such  logic  is  not  safe  logic  for  the 
purpose  of  ascertaining  the  meaning  of  language  as  used  in 
a  statute  or  in  a  constitution.  The  judge  says  that  corpor- 
ations are  not  born.  It  is  true  that  in  a  literal  technical 
sense  they  are  not,  and  yet  in  a  legal  and  figurative  sense 
they  are.  Bentham  says :  "  Laws  and  property  are  born 
and  must  die  together.  Before  there  were  laws  there  was 
no  property;  take  away  the  laws  and  property  ceases." 

Mr.  Justice  Bradley — Do  you  contend  that  tfyat  first 
clause  of  the  amendment  relates  to  artificial  persons  ? 

Mr.  Sanderson — I  am  not  done  with  that  language  yet. 
The  confusion,  or  whatever  it  may  be  called,  thrown  into 
this  amendment  in  the  first  clause,  is  due  to  the  fact  that 
an  amendment  was  tacked  on  to  it  which  the  committee 
did  not  report. 

Mr.  Justice  Bradley — I  thought  you  were  arguing  that, 
although  the  word  person  was  used,  it  might  to  some  ex- 
tent be  applied  to  corporations. 

Mr.  Sanderson — Yes,  it  may.  If  I  understand  your 
honor,  I  think  that  the  construction  of  the  word  "  person  " 


17 

that  the  learned  judge  gives,  where  it  occurs  in  the  last  two 
clauses,  claiming  that  it  is  the  same  in  meaning  as  the  word 
"person"  found  in  the  first,  is  all  wrong,  for  the  reason 
that  the  word  "  person  "  used  in  the  first  clause  is  accom- 
panied by  the  associate  words  "  born  or  naturalized,"  which 
are  a  limitation  upon  the  word  "  person  "  as  there  used,  and 
confines  its  meaning  to  those  who  are  born  and  who  are 
naturalized,  while  the  word  '*  person "  in  the  last  two 
clauses  is  not  associated  with  any  qualifying  words  at  all, 
but  is  used  in  its  generic  sense,  and  embraces  all  persons 
of  all  classes.  The  word  "person  "  in  the  last  two  clauses 
is  broader  and  more  comprehensive  than  the  word  "person" 
contained  in  the  first  clause.  As  suggested  by  my  asso- 
ciate, Mr.  Edmunds,  an  examination  of  the  journal  will 
show  that  this  first  clause  in  relatiou  to  citizenship  was  a 
political  clause,  which  was  not  in  the  amendment  at  the 
time  it  was  reported  to  the  House,  but  was  added  in  the 
Senate,  and  has  no  connection  with,  and  was  not  intended 
to  have,  any  control  over  the  subsequent  parts. 

Mr.  Justice  Bradley — I  understand  there  was  a  great 
controversy  about  citizenship;  whether  they  belonged  to 
the  State  or  the  United  States. 

Mr.  Sanderson — Yes,  sir,  that  question  was  considered 
by  Mr.  Justice  Miller  in  the  Slaughter-house  Cases. 

Mr.  Justice  Bradley — And  the  amendment  was  intended 
to  settle  that  question  ? 

Mr.  Edmunds — Yes,  but  it  was  a  political  consideration 
that  the  Senate  suggested  to  the  House  after  the  main  body 
of  private  rights  had  been  disposed  of  in  the  House  of  Rep- 
resentatives. 

Mr.  Sanderson — To  continue  my  remarks  upon  the 
Louisiana  case.  The  reasoning  in  that  case  interpolates 
words — adds  words  to  the  language  of  the  Fourteenth  Amend- 
ment which  were  not  employed  by  the  statesmen  who 
framed  it.  According  to  the  reasoning  in  that  case  the  first 
3s 


18 

section — if  the  meaning  attributed  to  it  be  fully  expressed 
in  words — would  read  thus  : 

"All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside;  *  *  * 
nor  shall  any  State  deprive  any  person  (born  or  naturalized 
in  the  United  States)  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  deny  to  any  person  (born  or 
naturalized  in  the  United  States)  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

To  thus  interpolate  words  is  not  sanctioned  by  any  rule 
of  construction.  To  thus  interpolate  words  is  to  make  laws 
and  not  to  construe  them.  No  court  can  lawfully  do  this. 
Jus  diseere  7ion  jus  dare  is  the  measure  of  judicial  power. 
You  may  declare  the  law  but  you  cannot  make  it.  Had 
Congress  intended  the  meaning  which  the  learned  judge 
has  given  to  the  word  "  person  "  they  would  have  prefixed 
to  it  the  word  "such,"  so  that  these  clauses  would  have 
read  as  follows  : 

"  Nor  shall  any  State  deprive  any  (such)  person,  &c. ;  nor 
deny  to  any  (such)  person,  &c." 

And  the  fact  that  no  euch  qualifying  word  or  words  were 
used  conclusively  shows  that  no  such  limitation  upon  the 
meaning  of  the  word  "  person  "  was  intended. 

There  are  two  other  cases  in  which  the  same  conclusion 
was  reached.  One  was  decided  by  the  supreme  court  of 
California,  and  the  other  by  a  judge  of  a  circuit  court  of  the 
State  of  Illinois.  The  former  gave  no  reasons  for  the  faith 
that  was  in  them,  but  blindly  followed  the  Louisiana  case. 
The  Illinois  judge  adopted  the  reasoning,  substantially,  of 
Mr.  Justice  Woods. 

In  opposition  to  the  doctrine  announced  in  these  cases 
there  have  been  several  decisions  by  the  Federal  judges  on 
the  Pacific  coast,  and  by  United  States  circuit  Judge  Drum- 
mond,  of  Illinois,  in  which  it  has  been  held  that  corpora- 


19 

tions  are  as  much  entitled  to  protection  under  the  Fourteenth 
Amendment  as  natural  persons.  These  decisions  are  cited 
in  my  brief.  I  have  no  time  for  comment.  There  is  also 
a  case  by  the  supreme  court  of  Illinois,  in  which  it  is  held 
that  no  distinction  can  be  made  between  corporations  and 
natural  persons  in  the  presence  of  constitutional  guaranties. 
This  case  is  not  cited  in  my  brief.  It  is  reported  in  76 
Illinois  Reports,  at  page  447.  I  trust  your  honors  will  read 
it. 

These  decisions  we  must  presume  were  perfectly  familiar 
to  the  statesmen  who  framed  the  Fourteenth  Amendment. 
They  were  familiar  with  the  fact  that  the  word  person  in- 
cluded corporations,  and  if  any  layman  in  either  House  of 
Congress  had  moved  to  amend  by  adding  the  word  "  corpo- 
ration "  in  addition  to  the  word  "  person,"  every  lawyer  in 
the  House  would  have  told  him  that  it  was  entirely  unnec- 
essary. If  he  had  moved  to  amend  by  adding  "any  other 
association,  firm,  co-partnership,  or  joint  stock  company," 
they  would  have  told  him  that  the  word  person  in  connec- 
tion with  civil  rights  always  includes  corporations  and 
other  legal  associations.  I  think  you  can  find  no  case  in  the 
books  to  the  contrary.  Suppose  that  certain  negroes  down 
in  South  Carolina,  having  acquired  means  suflicient,  should 
conclude  to  build  a  theatre  or  some  other  place  of  amuse- 
ment and  should  build  it.  We  all  agree,  I  think,  that  the 
Fourteenth  Amendment  protects  the  negro  against  State 
action  if  it  does  not  the  white  man.  Now  suppose  that 
these  persons  after  having  built  their  theater  should 
come  to  the  conclusion  that  it  would  be  advantageous 
for  them  to  take  on  the  form  of  a  corporation  for 
carrying  on  their  business,  and  should  organize  them- 
selves into  a  corporation  so  that  you  would  have  in  fact 
a  colored  corporation  instead  of  colored  natural  persons. 
Would  such  a  corporation  be  within  the  protection  of  the 
Fourteenth  Amendment  ?  Could  the  State  of  South  Caro- 
lina despoil  them  of  their  theatre  upon  the  ground  that  they 


20 

were  a  corporation,  while  they  could  not  be  despoiled  of 
their  theatre  so  long  as  they  remained  in  their  capacities  as 
natural  persons?  It  cannot  be  that  a  great  constitutional 
provision  of  this  character  can  be  rendered  inoperative  sim-. 
ply  by  a  change  in  the  legal  attitude  which  the  parties  may 
assume.  If  the  constitution  would  protect  such  property 
from  State  action,  while  its  owners  were  individuals  or  nat- 
ural persons,  it  must  necessarily  do  the  same  thing  when 
they  take  on  the  form  of  a  corporation,  or  else  this  eonsti- 
tional  amendment  fails  to  accomplish  in  part  one  of  the 
great  purposes  which  all  concede  was  intended  to  be  sub- 
served by  its  adoption — namely,  protection  for  the  negro 
race. 

A  short  time  before  this  case  came  up  in  California  an 
item  appeared  in  the  newspapers  which  illustrates  the  ab- 
surdity of  holding  that  a  corporation  is  not  included  within 
the  word  "  person  "  as  used  in  this  amendment.  A  certain 
firm  doing  a  large  and  extensive  business,  which  they  had 
been  conducting  for  several  years,  concluded  that  it  would 
be  more  convenient  to  organize  themselves  into  a  corpora- 
tion to  carry  on  precisely  the  same  kind  of  business.  They 
formed  a  corporation,  and  they  published  in  the  newspapers 
the  fact  that  they  had  formed  a  corporation,  and  that  the 
corporation  would  continue  the  business  as  before,  and  that 
the  interest  of  each  member  would  be  the  same  in  the  cor- 
poration as  it  had  been  in  the  firm.  Now,  take  that  case. 
While  they  remained  in  their  capacities  as  natural  persons, 
no  one  pretends  that  they  were  not  within  the  protection  of 
the  Fourteenth  Amendment,  if  that  amendment  applies  at 
all  to  white  people.  But  the  moment  they  laid  aside  their 
natural  capacity  and  assumed  that  of  a  corporation,  accord- 
ing to  the  logic  of  our  friends  upon  the  other  side,  they  for- 
feited all  their  rights  under  the  Fourteenth  Amendment. 
Thereafter  there  was  no  restraint  upon  the  State  in  respect 
to  them,  though  prior  to  that  time  there  had  been.  By  this 
simple  transmutation  of  private  persons  into  a  corporation, 


21 

the  meaning,  force,  and  effect  of  this  constitutional  pro- 
vision, if  counsel  upon  the  other  side  be  correct,  was  en- 
tirely changed  and  reversed. 

Another  consideration,  may  it  please  the  Court.  Corpo- 
rations are  composed  of  natural  persons.  They  pay  in  their 
money;  the  assets  of  the  corporation  are  furnished  by  them- 
selves. The  whole  property  is  contributed  by  themselves. 
The  corporation  is  the  mere  representative  or  agent  of  its 
stockholders.  During  the  life  of  the  corporation  its  stock- 
holders are  entitled  to  share  in  its  earnings,  if  there  be  any, 
in  the  way  of  dividends.  Upon  the  dissolution  of  the  cor- 
poration they  are  entitled  to  share  in  the  surplus  fund,  after 
the  payment  of  creditors,  if  there  be  any.  Now,  this  inter- 
est which  the  stockholder  has  in  the  property,  and  assets  of 
the  corporation,  is  property.  It  has  a  commercial,  exchange- 
able value.  It  is  transferred  from  person  to  person  by  the 
transfer  of  certificates  representing  shares.  It  is  property. 
If  a  man  dies  it  descends  to  his  personal  representative  for 
the  purpose  of  administration,  and  if  there  be  any  left  after 
administration  it  goes  to  his  heirs ;  and  it  is  in  view  of  these 
legal  conditions  that  the  courts  hold  that  stockholders'  bills 
,  may  be  entertained  for  the  purpose  of  protecting  the  stock- 
holder against  the  mal-administ ration  of  the  directors.  Is 
it  to  be  presumed  that  property  of  this  character  was  not 
intended  to  be  protected  by  the  clause  in  relation  to  due 
process  of  law  as  much  as  any  other  property  belonging  to 
a  natural  person?  I,  as  a  natural  person,  own  certain  spe- 
cies of  property.  The  Federal  Constitution  protects  that 
from  the  unjust  legislation  of  the  State.  I  also  own  an  un- 
divided interest  in  the  assets  of  a  corporation,  which  is  also 
property.  That  property,  the  learned  gentleman  upon  the 
other  side  informs  us,  the  Fourteenth  Amendment  will  not 
protect  against  confiscation  on  the  part  of  the  State.  Can 
it  be  possible  that  the  Fourteenth  Amendment  can  be  so 
construed  as  to  lead  to  these  contradictory  and  absurd  re- 
sults ?     Can  it  be  that  it  was  not  intended  to  protect  all 


22 

kinds  and  descriptions  of  property  belonging  to  natural 
persons,  whether  it  be  that  which  is  under  his  own  absolute 
control  or  that  to  which  the  title  is  invested  in  some  third 
party  as  trustee  to  hold  for  his  benefit?  Can  a  mere  differ- 
ence in  circumstances  and  condition  between  the  first  and 
second  kinds  of  property  referred  to  create  a  difference  in 
rule  in  the  constitutional  law  of  the  country  ?  I  most  re- 
spectfully submit  that  it  does  not;  and  therefore,  for  the 
purpose  of  carrying  out  the  command  and  behest  of  the 
Federal  Constitution,  you  are  required  to  do  what?  The 
command  is  that  no  State  shall  deny  to  any  person  the 
equal  protection  of  the  laws;  no  State  shall  deprive  any 
person  of  life,  liberty,  or  property,  except  by  due  process  of 
law — all  property — any  property  which  he  holds  in  his 
own  right,  in  his  own  name,  or  in  the  name  of  another;  the 
word  is  "  property,"  the  broad  generic  term  which  covers 
and  includes  everthing  which  man  may  acquire,  possess, 
and  enjoy — all  property.  The  language  is,  no  State  shall 
deprive  any  person  of  life,  liberty,  or  property — that  is  to 
say,  any  property — except  by  due  process  ot  law. 

Now,  if  that  is  what  it  means,  then,  in  order  to  protect 
the  interests  of  the  stockholder  in  the  assets  of  the  cor- 
poration, you  must  protect  the  corporation.  To  accomplish 
the  principal  purpose  you  must  subserve  the  minor.  You 
cannot,  because  a  man  has  deposited  his  property  in  the 
hands  of  another,  hold  it  subject  to  confiscation  by  a  State 
in  the  presence  of  such  a  provision  of  the  Federal  Consti- 
tution. 

It  is  next  said,  may  it  please  your  honors,  that  this  pro- 
vision of  the  Federal  Constitution  does  not  apply  to  white 
men ;  that  it  was  intended  to  apply  only  to  the  negro  race. 
It  is  very  clear,  if  we  look  back  over  the  history  of  the  past 
twenty  years,  that  this  country  has  done  a  great  deal  for 
the  negro  race.  It  has  stricken  the  fetters  from  their  ankles 
and  their  hands,  and  it  has  endowed  them  with  a  second 
manhood.     It  has  made  them  free  men;  it  has  endowed  them 


23 

with  the  rights  of  citizenship,  political  and  civil,  and  it  has 
placed  them  on  a  par  and  equality  with  the  white  man. 
But  that  is  none  too  much;  we  do  not  complain  of  that. 
We  only  say  that  something  should  now  be  done  for  the 
poor  white  man.  We  ask  that  he  may  be  lifted  up  and  put 
upon  a  level  with  the  negro.  We  ask  that  this  Fourteenth 
Amendment  be  so  construed  as  to  concede  to  the  white  man 
equal  rights  under  the  Constitution  of  the  United  States 
with  the  black  man.  Our  claim  is  for  universal  equality 
before  the  law.  We  claim  that  we  should  have  no  privi- 
leged classes;  that  we  should  all  stand,  as  regards  the  law, 
upon  the  same  broad  and  level  platform.  And,  yet,  my 
friends  upon  the  other  side,  by  their  construction  of  this 
amendment,  would  create  a  privileged  class.  They  have 
demonstrated,  if  they  have  demonstrated  anything,  that 
the  negro  race  of  America  is  a  privileged  class ;  that  it 
stands  higher  upon  the  plane  of  legal  rights  than  the  white 
man;  that  whenever  his  rights  are  invaded  he  finds  a  shield 
and  a  protection  in  the  Fourteenth  Amendment  to  the 
Federal  Constitution ;  but  whenever  a  white  man's  rights 
are  invaded,  whenever  he  is  outraged  by  unjust  State  legis- 
lation, we  are  told  by  the  eloquent  gentleman  on  the  other 
side  that  there  is  no  shield  for  him  to  be  found  in  the 
Fourteenth  Amendment;  that  the  white  man  is  without 
protection  in  cases  where  the  black  man  is  protected ;  in 
other  words,  that  the  white  man  is  not  the  equal  of  the 
black  man.  The  construction  which  they  put  on  these 
clauses  of  the  Fourteenth  Amendment  leads  us  inevitably 
to  that  conclusion. 

I  have  been  to  the  trouble  of  gathering  a  few  statistics 
upon  this  subject,  for  the  purpose  of  illustrating  what  the 
consequence  of  this  doctrine  would  be  should  it  receive 
the  sanction  of  this  Court.  On  page  52  of  my  brief  you 
will  find  some  information  which  I  have  gathered  from  the 
census  returns  of  1870,  and  also  from  the  census  returns  of 
1880.     In    1870   the   negro   population    in  Louisiana  was 


24 

364,210  and  the  white  population  362,065  ;  the  excess  of 
blacks  over  whites  was  over  2,000.  In  1880  the  black  popu- 
lation of  the  same  State  was  483,794  and  the  white  popula- 
tion 455,007;  an  excess*  of  blacks  over  whites  of  28,787. 
In  Mississippi  the  black  population  in  1870  was  444,201, 
while  the  white  population  was  only  382,896,  making  an 
excess  of  blacks  over  whites  of  61,305.  In  the  same  State 
in  1880  the  black  population  was  650,337  and  the  white 
population  479,371 ;  an  excess  of  blacks  over  whites  of 
170,966.  In  the  State  of  South  Carolina  the  black  popula- 
tion in  1870  numbered  415,814,  while  the  white  population 
in  the  same  State  was  only  289,667;  an  excess  of  blacks  of 
126,147.  In  the  same  State  in  1880  the  black  population 
numbered  604,^75,  while  the  wThite  population  numbered 
only  391,224 ;  an  excess  of  blacks  of  213,051. 

I  refer,  if  the  Court  please,  to  these  statistics  for  the  pur- 
pose of  giving  point  to  my  illustration  which  I  propose  to 
present  for  the  purpose  of  showing  that  this  constitutional 
provision  was  not  intended  to  be  limited  in  its  scope  and 
provision  to  the  negro  race  alone. 

Mr.  Justice  Miller — As  we  decided  in  the  Slaughter 
House  cases,  (although  the  argument  was  the  other  way,) 
we  say :  "And  so,  if  other  rights  are  assailed  by  the 
States  which  properly  and  necessarily  fall  within  the  pro- 
tection of  these  articles,  that  protection  will  apply,  though 
the  party  interested  may  not  be  of  African  descent." 

Mr.  Sanderson — I  am  glad  to  know  that,  your  honor. 

Mr.  Justice  Miller — I  do  not  know  that  anybody  in 
this  Court — I  have  never  heard  it  said  in  this  Court  or  by 
any  judge  of  it — that  these  articles  were  supposed  to  be 
limited  to  the  negro  race. 

Mr.  Sanderson — But  there  is  a  notion  out  among  the 
people,  and  our  friends  on  the  other  side  have  cited  several 
cases  for  the  purpose  of  showing  that  it  was  the  intention 
of  this  Court  to  give  to  this  provision  of  the  Constitution 
as  restricted  and  limited  application  as  possible. 


25 

Mr.  Justice  Miller — The  purport  of  the  general  dis- 
cussion in  the  Slaughter-House  cases  on  this  subject  was 
nothing  more  than  the  common,  declaration  that  when  you 
come  to  construe  any  act  of  Congress,  any  statute,  any  con- 
stitution, any  legislative  decjree,  you  must  consider  the 
thing,  the  evil  which  was  to  be  remedied,  in  order  to  un- 
derstand fairly  what  the  purpose   of  the  remedial  act  was. 

Mr.  Sanderson — We  agree  perfectly,  and  I  am  not  going 
to  urge  that  there  is  anything  contained  in  the  Slaughter- 
House  cases  which  admits  of  a  different  construction  than 
your  honor  now  puts  upon  it.  But  I  must  confess  that  there 
has  been  an  impression  thut  the  Slaughter-House  cases  nar- 
rowed the  provisions  of  the  first  clause,  and  also  the  provisions 
of  the  two  latter  clauses — their  scope,  as  one  would  naturally 
understand  them  from  reading  their  words.  But,  as  I  was 
about  to  show  when  your  honor  interrupted  me,  the  Slaughter- 
House  cases  do  not  justify  such  an  impression.  Your  honor 
says,  at  page  72,  "  We  do  not  say  that  no  one  else  but  the 
negro  can  share  in  this  protection.  *  *  * 

And  so,  if  other  rights  are  assailed  by  the  States,  which 
properly  and  necessarily  fall  within  the  protection  of  these 
articles,  that  protection  will  apply,  though  the  party  inter- 
ested may  not  be  of  African  descent."  » 

I  am  very  glad  to  have  any  doubt  which  has  existed  in 
the  minds  of  the  profession  in  regard  to  the  purport  and 
meaning  of  that  decision  cleared  up  by  an  authoritative 
opinion  given  in  this  public  manner.  I  understand,  then, 
that  we  may  consider,  for  the  purposes  of  this  case,  so  far 
as  your  honor  is  concerned,  that  the  color  line  has  disap- 
peared from  American  jurisprudence,  that  there  are  not 
two  constitutions  in  this  country — one  for  the  black  man 
and  one  for  the  white  man — and  that  the  white  man  is  at 
last  on  an  equality  with  the  negro.  But,  nevertheless, 
in  view  of  the  fact  that  there  are  some  judges  on  the  bench 
who  were  not  here  at  the  time  the  Slaughter-House  cases 
were  considered,  and  who  may,  so  far  as  I  know,  entertain 
4s 


26 

the  idea  that  there  are  some  clauses  of  this  amendment 
which  confine  its  operation  to  the  negro  race,  I  do  not 
propose  to  discontinue  my  argument  on  this  point.  Let  us 
reverse  the  conditions  presented  by  Mr.  Justice  Miller  in 
the  Slaughter-House  cases,  in  refereuce  to  the  condition 
of  the  negroes  at  the  South,  and  the  character  of  the 
legislation  which  had  been  enacted  against  them  for 
the  purpose  of  testing  whether  this  constitutional  re- 
striction was  intended  to  be  confined  exclusively  to 
them  or  not.  I  say,  suppose  in  those  three  States,  Missis- 
sippi, Louisiana,  and  South  Carolina,  where  the  negro 
population  preponderated  over  the  white,  the  negroes  had 
possessed  the  requisite  intelligence  and  nerve  to  organize 
themselves  into  a  political  party  and  had  elected  their  own 
men  to  office ;  had  filled  the  halls  of  legislation  and  the 
halls  of  justice  with  persons  of  their  own  race ;  suppose 
they  had  enacted  laws  prohibiting  white  persons  from  re- 
siding in  the  towns,  except  in  the  capacity  of  menial 
servants,  requiring  them  to  reside  upon  the  soil  and  till  it, 
but  denying  to  them  the  right  to  purchase  it,  or  own  it; 
had  denied  to  them  the  right  to  testify  in  cases  in  courts  of 
justice  where  negroes  were  a  party;  had  by  the  failure  to 
pass  sufficient  or  to  provide  for  the  efficient  administration 
of  the  laws  allowed  the  beating  down  of  white  men  by 
negroes,  as  is  represented  to  have  been  done  to  negroes  by 
wrhite  men  in  the  Slaughter-House  cases.  Now,  suppose 
these  poor  whites  had  come  to  this  Court,  claiming  protec- 
tion against  such  legislation  ;  suppose  they  had  come  to  this 
Court  and  invoked  for  their  protection  against  such  out- 
rages the  provisions  of  the  Fourteenth  Amendment  to  the 
Federal  Constitution.  Would  this  Court  have  closed  its 
doors  in  their  faces  ;  would  it  have  said  to  them  "  the  Four- 
teenth Amendment  was  intended  to  prohibit  white  men  from 
enacting  such  legislation  against  black  men,  but  it  was  not 
intended  to  prohibit  black  men  from  enacting  such  legisla- 
tion against  white  men  ?  "     I  do  not  think  the  Court  would 


27 

have  so  answered ;  I  am  now  more  satisfied  than  ever  that 
it  would  not.  I  am  glad  to  know  that  we  have  not,  in  this 
country,  two  constitutions,  one  for  the  black  man  and  one 
for  the  white  man.  I  am  glad  to  know,  in  advance,  that 
the  color  line  is  about  to  disappear  from  legislative  and 
judicial  history  in  this  country,  and  that  all  of  us  white, 
as  well  as  black,  are  to  stand  side  by  side  upon  the  broad 
platform  of  universal  equality  in  the  presence  of  the  law  of 
the  land. 

But  it  is  also  said  that  we  are  not  entitled  to  the  benefits 
of  this  provision  of  the  Fourteenth  Amendment  because  the 
laws  of  which  we  complain  are  not  within  the  operation  of 
the  Fourteenth  Amendment;  are  not  the  laws  to  which  the 
Fourteenth  Amendment  refers.  In  other  words  it  was  not 
intended  by  the  Fourteenth  Amendment  to  vest  the  judi- 
ciary of  the  United  States  with  the  power  of  reviewing  the 
revenue  laws  of  the  States  to  ascertain  their  purpose  or  to 
ascertain  whether  they  were  consistent  with  the  Constitution 
of  the  United  States  or  not.  Where  is  there  a  warrant  or 
authority  for  such  an  assertion  ?  You  do  not  find  it  in  the 
language,  it  is  not  there ;  "  nor  shall  any  State  deny  to  any 
person  equal  protection  " — of  what?  "  of  the  laws  "  against 
crime ;  with  the  respect  to  the  enjoyment  of  property;  in 
relation  to  proceedings  in  courts  of  justice;  laws  relating 
to  conveyancing  and  the  thousand  and  one  subjects  of  which 
laws  treat?  Not  at  all.  "  No  State  shall  deny  to  any  person 
the  equal  protection  of  the  laws  " — all  laws — any  law  by 
which  a  State  may  deny  to  anv  person  equal  protection  with 
some  other  person.  Now  the  subject-matter  of  the  law  is  a 
matter  of  the  utmost  indifference.  It  is  not  that  against 
which  the  Constitution  of  the  United  States  is  to  provide 
protection.  No  matter  what  the  subject  may  be  it  is  as  to 
the  law  itself — no  matter  what  it  relates  to.  That  law 
must  operate  equally.  Each  person  must  find  who  comes 
in  contact  with  it,  equal  protection  at  its  hands  no  matter 
in  what  department  of  the  law  it  may  be  found. 


28 

The  Chief  Justice — You  have  a  half  hour  left  to  com- 
plete your  argument. 

Mr.  Sanderson — Then  I  will  submit  only  one  or  two 
more  suggestions  for  the  purpose  of  showing  that  tax  laws 
are  within  the  operation  of  that  amendment.  We  have 
already  agreed  that  the  negro  is  within  the  meaning  of 
that  amendment,  and  now  we  have  all  agreed  that  the  white 
man  is  within  the  meaning  of  that  amendment.*  There- 
fore we  have  made  some  progress.  Therefore  I  will 
suppose,  if  there  should  be  anybody  who  still  adheres 
to  the  color  line  theory,  that  South  Carolina  should 
pass  laws  imposing  a  capitation  tax  upon  persons  within 
its  jurisdiction,  say  a  capitation  tax  of  $5  upon  negroes 
and  $2.50  upon  white  men,  would  my  friends  upon  the 
other  side,  who  say  that  the  negro  is  shielded  and  pro- 
tected by  the  Fourteenth  Amendment,  say  that  lawr 
is  not  within  it  because  it  was  a  law  made  in  the  exer- 
ercise  of  the  taxing  power  ?  I  think  not.  Suppose  they 
should  pass  a  law  by  which  the  property  of  white  men, 
when  sold  for  taxes,  should  be  sold  subject  to  redemption 
at  any  time  within  one  year.  Suppose  that  they  should 
provide  that  in  the  case  of  black  men  the  property  so  sold 
should  be  sold  absolutely,  and  not  be  subject  to  redemp- 
tion at  all.  Would  that  be  a  case  within  the  Fourteenth 
Amendment  ?  Yet  that  would  be  a  law  in  relation  to  tax- 
ation. Why,  it  is  hardly  necessary,  may  it  please  the 
Court,  to  illustrate  this  matter  further.  Tax  laws  are  the 
very  laws  of  all  others  which  are  within  the  operation  of  the 
Fourteenth  Amendment.  It  is  by  the  exercise  of  the  tax- 
ing power  that  oppression  and  tyranny  has  been  visited 
upon  peoples  and  countries  from  the  earliest  ages  down  to 
the  present  time.  It  is  the  one  element  of  despotism  and 
tyranny  yet  left  in  every  government  of  republican  forms. 

Mr.  Justice  Bradley — In  former  times,  and  I  think  at 
present  in  some  States,  it  was  customary  to  impose  special 
taxes  on  objects.     On  a  mill  it  was  ten  dollars  on  every  mill 


29 

in  the  State,  and  on  every  carding  machine,  and  so  on. 
Various  articles  were  specially  taxed.  In  New  Jersey  they 
were  called  specialties,  and  like  all  other  property  so  as- 
sessed, valued  at  a  valuation  and  taxed  pro  rata.  And  at 
present  I  presume  that  railroad  property  and  railroads  are 
in  some  States  taxed  specially  so  much,  perhaps,  on  their 
income  as  a  commutation  of  all  other  taxation.  Now,  do 
you  contend — do  your  principles  require  you  to  contend — 
that  a  State  has  lost  its  power  of  thus  taxing  different 
species  of  property  in  special  lines  ? 

Mr.  Sanderson — Not  at  all. 

Mr.  Justice  Bradley — That  has  not  been  particularly 
dwelt  upon,  and  I  did  not  know  but  what  you  did. 

Mr.  Sanderson — Not  at  all.  We  admit  to  the  fullest 
legal  extent  the  power  of  a  State  to  classify  property  for  the 
purpose  of  taxation.  We  have  never  contended  for  any- 
thing else,  and  if  there  is  anything  in  this  case  which  puts 
us  in  that  attitude  before  the  Court,  it  has  come  from  coun- 
sel on  the  other  side  in  misapprehending  our  views.  We 
do  not  deny  the  power  of  the  State  to  classify  property  for 
the  purpose  of  taxation,  but  we  do  deny  that  the  State  of 
California  has  exercised  that  power,  except  to  a  very  limited 
extent,  by  exempting  growing  crops  and  exempting  credits 
equal  to  the  amount  of  debts.  It  has  made  no  classification 
whatever  of  the  property,  but  it  has  declared,  on  the  con- 
trary, that  all  property  shall  be  taxed  according  to  its  value. 

Mr.  Justice  Bradley — That  is  their  constitution,  but  I 
am  looking  at  the  Fourteenth  Amendment. 

Mr.  Sanderson — The  Fourteenth  Amendment  simply  re- 
quires equality ;  that  the  law  shall  bear  equally  upon  all 
persons  and  things  upon  which  it  bears  at  all;  that  is  our 
position.  You  may  cast  the  burdens  of  taxation  upon  one 
species  of  property  to  the  exclusion  of  another;  such  a  law 
affords  equal  protection  to  all  upon  whom  it  operates.  To 
illustrate:  Suppose  the  State  should  levy  a  specific  tax  of 
twenty-five   cents  upon  the  cows  of  A  and  fifty  cents  upon 


30 

the  cows  of  B.  The  power  of  selecting  a  cow  for  the  pur- 
pose of  taxation,  and  levying  a  tax  upon  it,  we  admit.  What 
we  deny  is  that  you  can  levy  a  tax  of  twenty-five  cents  on 
the  cows  of  A  and  at  the  same  time  levy  a  tax  of  fifty  cents 
on  the  cows  of  B.  And  the  Fourteenth  Amendment,  in 
declaring  that  no  State  shall  deny  to  any  person  the  equal 
protection  of  the  laws,  means  that.  It  means  that  wherever 
the  law  touches  different  individuals,  wherever  such  indi- 
viduals stand  in  the  same  relation  to  the  law,  where  the 
conditions  and  the  circumstances  are  the  same,  the  rule  of 
law  shall  also  be  the  same.  In  the  example  which  your 
honor  just  cited  of  taxation  in  New  Jersey,  you  do  not  tax 
the  mill  of  A  so  much  and  the  mill  of  B  so  much  more,  and 
so  on. 

Mr.  Justice  Bradley — No  ;  but  it  might  be  taxed  higher 
than  other  property  of  the  same  character. 

Mr.  Sanderson — We  hold  that  when  an  ad  valorem  system 
of  taxation  is  adopted,  or  a  specific  system,  (you  can  tax  by 
either  process,)  you  cannot  impose  a  greater  rate  upon  the 
property  of  A  than  upon  the  property  of  B  of  the  same 
kind  :  nor  can  you  adopt  one  mode  of  valuation  in  the  one 
case  not  resorted  to  in  the  other,  if  the  result  be  the  laying 
of  a  greater  burden  upon  one  person  than  another  in  re- 
spect to  the  same  kind  of  property.  Such  legislation,  we 
say,  is  prohibited  by  the  Fourteenth  Amendment. 

Mr.  Justice  Bradley — In  other  words  when  the  tax  be- 
comes personal  in  an  invidious  sense. 

Mr.  Sanderson — Yes,  it  is  then  a  discrimination  not  be- 
tween different  kinds  of  property  but  between  different  own- 
ners  of  the  same  kind  of  property.  To  illustrate:  this  case 
shows  that  the  defendant  in  error  is  the  owner  of  about 
eight  million  acres  of  land  granted  by  the  United  States  to 
enable  it  to  construct  its  road.  It  was  granted  each  alter- ' 
nate  section  to  the  number  of  ten  on  each  side  of  the  road  per 
mile.  Now  the  even  sections  are  owned  by  natural  persons. 
We  will  assume  that  a  natural  person  has  put  a  mortgage  on 


31 

his  to  one-half  its  value.  We  will  assume  that  the  mortgage 
of  the  railroad  company  is  also  one-half  of  its  value.  Now 
these  lands  are  of  identical  quality  and  quantity  and  value. 
They  are  the  same  in  all  respects;  you  cannot  distinguish 
one  from  the  other.  I  will  assume  for  the  purposes  of  my 
illustration  that  it  is  the  same,  and  that  you  cannot  distin- 
guish one  from  the  other  on  the  score  of  value.  Now  if  in 
ascertaining  the  value  of  his  land  the  natural  person  is  al- 
lowed to  deduct  the  face  value  of  the  mortgage  upon  it  and 
to  be  assessed  for  the  remaiuder  only,  and  the  defendant  is 
denied  a  deduction  and  made  to  pay  taxes  upon  the  full 
value  of  its  land  without  regard  to  the  mortgage ;  then,  I  say 
it  is  not  a  discrimination  between  different  kinds  of  prop- 
erty ;  the  property  is  identically  the  same — I  say  it  is  a  dis- 
crimination between  different  owners  of  the  same  kind  of 
property. 

Mr.  Justice  Harlan — You  therefore  deny  the  right  of 
the  State  to  tax  the  land  of  the  individual  citizen  without 
allowing  him  to  deduct  the  mortgage,  and  at  the  same  time 
allow  the  railroad  owning  similar  laud  to  deduct  the 
mortgage. 

Mr.  Sanderson — Of  course  I  do;  that  is  simply  reversing 
the  question,  if  I  understand  it.  It  results  not  in  a  discrim- 
ination between  different  kinds  of  property  for  the  purpose 
of  taxation,  but  in  a  discrimination  between  different  owners 
of  the  same  kind  of  property.  There  has  been  some  confu- 
sion of  ideas  brought  into  this  case,  arising  from  the  fact 
that  counsel  on  the  other  side  are  all  the  time  talking  about 
railroad  property,  and  speaking  of  it  as  property  mentioned 
in  the  fourth  section  of  the  13th  article  of  the  constitution 
of  the  State.  Now,  railroad  property  is  not  referred  to  at 
all  except  when  you  come  to  the  question  of  assessment.  It 
says,  "  except  as  to  property,"  not  as  to  railroads,  but  as  to 
the  property  of  railroad  and  other  quasi  public  corporations. 
It  is  not  an  exception  as  to  railroads  only — they  alone  are  not 
taken  out  of  the  general  rule  and  set  apart  by  themselves — 


32 

but  property  of  every  kind  and  description.  It  is  the  prop- 
erty of  railroad  and  other  quasi  public  corporations  that  is 
taken  out  of  the  operation  of  the  general  rule.  Now,  what 
are  quasi  public  corporations  ?  There  are  other  than  rail- 
road corporations  which  come  within  the  operations  of  this 
rule — toll-bridge  companies,  ferry  companies,  steamship 
and  hotel  companies,  corporations  engaged  in  any  kind  of 
business  which,  under  the  Granger  cases,  is  affected  b}T 
a  public  use — elevator  business,  for  instance.  Take  an 
elevator  erected  in  Chicago 

Mr.  Justice  Harlan — How  about  telegraph  companies  in 
California;  are  they  not  public  corporations? 

Mr.  Sanderson — They  are. 

Mr.  Justice  Bradley — I  regret  to  interrupt  you,  but  it 
might  throw  light  on  a  question  which  has  arisen  in  my 
mind.  What  objection  have  you  to  these  corporations  being 
taxed  the  full  value  of  the  property,  with  the  permission  or 
privilege  of  charging  the  encumbrance  or  mortgage?  Rail- 
road companies  and  other  large  corporations,  if  they  should 
put  a  mortgage  on  their  property  and  issue  innumerable 
bonds,  it  would  be  hard  to  find  those  bonds  to  tax ;  whereas, 
in  case  of  private  individuals  and  their  bonds  and  mortgages, 
it  is  easy  to  tax  property  by  itself  and  the  bond  and  mort- 
gage by  itself.  The  bond  and  mortgage  is  recorded,  but 
railroad  bonds  are  scattered  all  over  the  world.  Now,  as  a 
mode  of  getting  at  the  tax  on  the  whole  property,  what  is 
the  serious  objection  to  charging  it  all  to  the  railroad,  and 
permitting  them  to  charge  against  the  bondholders,  the 
amount  which  would  be  due  from  them  on  the  tax;  or  is  not 
that  done  in  this  law  or  in  this  constitution  ? 

Mr.  Sanderson — No,  sir;  and  that  is  just  what  is  the 
matter.  If  we  were  allowed,  I  do  not  know  but  what  we 
might  be  willing  to  serve  as  a  tax-gatherer,  although  I  do 
not  know  that  the  Government  has  any  power  to  impose 
upon  us  that  duty.     But  the  difficulty  here  is  that  this 


33 

mortgage  on  the  property  represents  an  undivided  interest 
in  it  for  the  purposes  of  taxation. 

Mr.  Justice  Bradley — That  is  in  private  property. 

Mr.  Sanderson — But  of  course  we  claim  that  the  rule 
should  be  extended  to  quasi  public  property.  Each  has  an 
interest  in  the  laud.  The  mortgagor  and  the  mortgagee 
are  tenants  in  common. 

Mr.  Justice  Bradley — I  understand  that. 

Mr.  Sanderson — Now,  in  the  case  of  natural  persons, 
each  interest  is  taxed  to  each  tenant,  but  in  the  case  of  quasi 
public  corporations  there  is  no  such  division  or  deduction 
made.  There  is  no  pretense  of  assessing  the  mortgage 
against  the  mortgagee  as  in  the  other  case.  If  there  were 
there  might  be  no  objection  to  the  companies  collecting  the 
tax  and  paying  it  over,  and  therefore  no  valid  objection  to 
the  law. 

Mr.  Justice  Bradley — The  constitution  is  put  in  the 
brief  in  piecemeals — in  fragments — and  I  have  not  seen  the 
whole  of  it.  Is  there  no  provision  allowing  the  railroad 
company  or  other  quasi  public  corporation  to  charge  against 
the  encumbrancer  the  tax? 

Mr.  Sanderson — No,  sir;  none  whatever.  There  is  in 
the  case  of  natural  persons.  In  the  case  of  a  railroad  com- 
pany or  other  quasi  public  corporation  no  such  question 
could  arise,  for  the  obvious  reason  that  the  mortgage  is  not 
taken  into  account  at  all;  it  is  ignored  as  a  false  quantity 
in  measuring  the  liability  of  a  railroad  or  other  quasi  public 
company  under  the  taxing  system. 

It  has  been  suggested — and  I  call  the  attention  of  the 
Court  to  it  in  my  brief — that  we  have,  in  support  of  our 
view  in  relation  to  this  question  of  whether  tax  laws  are 
within  the  operation  of  the  Fourteenth  Amendment,  a  legis- 
lative construction  on  the  part  of  Congress  in  the  re-enact- 
ment of  the  Civil  Rights  bill  after  the  Fourteenth  Amend- 
ment was  adopted.  In  this  re-enactment  Congress  inserted 
"  taxes,"  "  licenses,"  "  burthens,"  and  "  exactions  "  of  every 
5s. 


34 

kind  and  description,  although  they  were  not  in  the  Civil 
Rights  bill  originally,  and  probably  were  omitted  for  the 
very  reason  for  which  counsel  contend  upon  the  other  side, 
that  State  tax  laws  were  not  then  within  the  operation  of 
the  Federal  Constitution.  Had  the  bill  originally  contained 
this  provision  as  to  taxes,  &c,  it  doubtless  would  have  been 
unconstitutional,  but  upon  the  adoption  of  the  Fourteenth 
Amendment  such  a  provision  became  constitutional  in  the 
judgment  of  Congress,  and  that  body  in  re-enacting  the 
bill  industriously  inserted  this  provision  in  relation  to  taxes, 
licenses,  burthens,  and  penalties  of  every  kind,  and  thus 
gave  to  the  Fourteenth  Amendment  a  legislative  construc- 
tion. 

The  admonition  of  the  Chief  Justice  that  the  time  allowed 
me  is  about  to  expire,  compels  rne  to,  pass,  in  silence,  sev- 
eral questions  involved  in  this  case — as  to  whether  the  con- 
stitution and  laws  of  California  discriminate  between  quasi 
public  corporations  on  the  one  hand,  and  natural  persons 
and  corporations  not  quasi  public  on  the  other  hand;  as  to 
whether  the  system  of  taxation  in  California  can  be  consid- 
ered as  a  classification  of  property  for  the  purpose  of  taxa- 
tion ;  as  to  whether  such  system  can  be  sustained  as  valid 
on  the  ground  that  in  adopting  it  the  State  was  in  the  ex- 
ercise of  the  power  to  alter  and  amend  general  laws  in  rela- 
tion to  corporations ;  as  to  whether  the  guaranty  of  due 
process  requires  notice  and  an  opportunity  to  be  heard  in 
the  exercise  of  the  taxing  power  of  the  States,  and  as  to 
what  is  meant  by  the  equal  protection  of  the  laws  guaran- 
teed to  every  person  by  the  Fourteenth  Amendment.  I  re- 
gret that  I  am  denied,  by  the  lapse  of  time,  an  opportunity 
to  discuss  these  most  important  questions.  Fortunately  my 
associates  have  left  nothing  to  be  said  upon  these  points. 
They  are  pretty  fully  discussed  in  my  brief,  which  I  hope 
your  honors  will  read. 

In  closing  what  little  I  have  been  allowed  to  say  as  to  the 
construction  of  the  Fourteenth  Amendment,  T  take  the  lib- 


35 

erty  of  adding  that  I  have  always  believed  and,  in  opposition 
to  the  able  arguments  of  my  learned  friends  upon  the  other 
side,  I  still  believe,  that  by  these  two  clauses  of  the  Four- 
teenth Amendment  the  principles  of  Magna  Charta  and  of 
the  declaration  of  American  Independence  have  been  incor- 
porated into  our  National  Constitution,  as  a  just  and  whole- 
some restriction  upon  the  power  of  the  States.  I  believe 
that  the  clause  in  relation  to  due  process  means  the  same 
as  it  means  in  Magna  Charta — the  same  as  it  means  in 
every  State  constitution — the  same  as  it  means  in  the 
Fifth  Amendment  to  the  Federal  Constitution,  except  that 
there  it  is  a  restriction  upon  national  power,  while  in  the 
Fourteenth  Amendment  it  is  .a  restriction  upon  State 
power.  I  believe  that  the  clause  in  relation  to  equal  pro- 
tection means  the  same  thing  as  the  plain  and  simple 
yet  sublime  words  found  in  our  Declaration  of  Indepen- 
dence :  "All  men  are  created  equal."  JSTot  equal  in  phy- 
sical or  mental  power;  not  equal  in  fortune  or  social  posi- 
tion ;  but  equal  before  the  law.  I  do  not  believe  that  the 
two  clauses  in  relation  to  due  process,  found — one  in  the 
Fifth  and  the  other  in  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  mean  the  one  more  or  less  than  the 
other.  I  do  not  believe  that,  like  the  witches  in  Macbeth, 
they 

11  Palter  with  us  in  a  double  sense — 
Keep  the  word  of  promise  to  the  ear 
And  brake  it  to  the  hope." 

As  they  speak  the  same  language,  so,  in  my  belief,  they 
declare  the  same  intent.  I  believe  that  these  two  clauses 
were  the  one  stone  lacking  to  complete  the  edifice.  I  be- 
lieve them  to  be  the  crowning  glory  of  the  Federal  Con- 
stitution, and  I  regret  that  there  is  any  disposition  in  any 
quarter  to  dim  their  lustre  or  fritter  away  their  substance 
by  a  narrow  and  emasculating  construction  of  their  lan- 
guage. 

I  pass  to  the  last  question  presented  by  the  record,  and 


36 

that  is  as  to  whether  the  franchise  of  the  defendant  is  tax- 
able under  State  laws  or  not,  or  whether  it  is  protected 
from  State  taxation  by  the  supremacy  clause  of  the  Consti- 
tution of  the  United  States.  That  is  the  provision  of  the 
Constitution  to  which  we  appeal  for  the  purpose  of  showing 
that  this  franchise — the  right  to  be,  the  right  to  exist,  the 
right  to  maintain  and  operate  this  road — is  beyond  the  reach 
of  the  taxing  power  of  the  State  of  California. 

The  Chief  Justice — The  State  of  California  incorporated 
the  Southern  Pacific  Railroad  Company,  did  it  not  ? 

Mr.  Sanderson — Yes,  sir. 

The  Chief  Justice — And  by  act  of  Congress  there  has 
been  some  additional  franchises  or  grants? 

Mr.  Sanderson — Yes,  sir. 

The  Chief  Justice — It  is  in  the  same  condition  that  the 
Central  Pacific  was  ? 

Mr.  Sanderson — Yes,  sir. 

This  corporation  was  originally  organized  under  the  laws 
of  the  State  of  California  for  the  purpose  of  building  a 
road  from  the  Bay  of  San  Francisco  down  the  coast  of  Cali- 
fornia to  San  Diego,  and  thence  eastward  to  connect  with  a 
road  to  be  constructed  from  the  Valley  of  the  Mississippi  to 
the  Pacific  ocean.  At  what  particular  point  the  road  would 
cross  the  eastern  boundary  of  the  State  could  only  be  con- 
jectured. Hence  the  company  fixed  no  point  for  the  south- 
eastern terminus  of  its  road.  Congress  passed  an  act 
authorizing  the  company  to  connect  with  the  Atlantic  and 
Pacific  Railroad  at  a  point  on  the  eastern  boundary  of  the 
State  of  California  where  that  road  should  cross,  and  thence 
build  a  road  by  the  most  eligible  route  to  the  City  of  San 
Francisco. 

I  will  state  here,  because  I  do  not  want  to  be  misunderstood, 
that  I  do  not  claim  that  it  is  necessary  to  establish  the  prop- 
osition that  wTe  are  a  national  corporation  in  order  to  secure 
the  exemption  which  we  claim.  While  I  propose  to  establish 
that  fact  if  I  can,  yet  it  is  not  indispensable,   because  the 


37 

franchise  of  a  State  corporation  becomes  exempt  from  State 
taxation,  as  we  claim,  whenever  such  corporation  has  been 
selected  by  the  United  States  to^serve  the  Government  in 
the  capacity  of  an  agent  or  means  of  carrying  into  execution 
certain  governmental  powers  of  Congress. 

But  it  makes  a  clearer  cut  case, if  I  establish  the  proposition 
that  this  corporation  is  not  a  mere  local  State  corporation 
endowed  with  a  life  for  fifty  years  only,  but  a  national  cor- 
poration, selected  by  the  Government  of  the  United  States, 
adopted  by  the  Government  of  the  United  States,  for  the 
purpose  of  constructing,  maintaining,  and  operating  a  post 
and  military  road  for  all  time,  and  to  that  end  endowed 
with  immortality. 

It  is  not  necessary  in  creating  a  corporation,  that  there 
should  be  an}7  express  grant  of  corporate  powers.  If  the 
words  "  erect,"  "  establish,"  "  create,"  &c,  are  not  employed 
it  makes  no  difference.  It  requires  no  magic  words,  no  set 
or  formal  phrase  to  erect  a  body  men  into  a  corporation. 
It  may  be  done  by  implication.  It  may  be  done  as  summa- 
rialy  as  in  the  days  ot  chivalry  the  honor  of  knighthood  was 
conferred — "Kneel  down  and  rise  up  Sir  Knight."  All  that 
it  is  necessary  for  the  legislature  to  do  is  to  confer  some 
right  or  some  grant  on  a  body  of  men  by  a  collective  name 
which  cannot  be  enjoyed  except  by  the  exercise  of  corpo- 
rate faculties,  and  that  alone,  by  implication,  endows  the 
association  with  corporate  powers,  endows  them  with  im- 
mortality, and  with  all  the  other  powers  which  may  be  nec- 
essary to  carry  out  the  purpose  of  the  grant.  If  the  king 
makes  a  grant  of  land  to  the  "  Men  of  Islington  "  without 
words  of  succession  they  become  a  corporation,  for  other- 
wise the  grant  would  fail. 

I  do  not  contend  that  in  thus  adopting  a  State  corporation 
it  is  necessary  to  sever  its  connection  with  the  State.  It  is 
not  necessary  to  sever  it.  A  corporation  may  have  a  dual 
existence;  it  may  be  Janus-faced — one  face  turned  toward 
the  State,  and  the  other  toward  the  United  States.     We  are 


38 

citizens  of  the  United  States  and  of  the  State  in  which  we 
reside.  So  corporations  may  be  corporations  of  the  United 
States  as  well  as  corporations  of  the  State  in  which  they 
reside,  or  have  their  principal  place  of  business.  What 
has  this  Court  said  in  support  of  the  proposition  that  one 
sovereign  may  adopt  a  corporation  created  by  another  sov- 
ereign ?  In  2  Black  will  be  found  a  case  where  a  railroad 
corporation  created  under  the  laws  of  Indiana  proposed  to 
extend  its  road  to  Cincinnati,  Ohio,  and  to  that  end  applied 
to  the  Legislature  of  Ohio  for  a  grant  of  corporate  powers 
and  privileges  to  enable  it  to  cross  the  border  line,  and 
penetrate  Ohio  to  Cincinnati.  The  Legislature  of  Ohio,  in- 
tending to  grant  them  all  the  powers  that  were  requisite  in 
order  to  accomplish  that  purpose,  undertook  to  pass,  and 
did  pass,  substantially,  the  same  charter — the  same  law 
under  which  they  were  incorporated  in  Indiana.  Very  well, 
what  was  the  result  of  that?  Was  this  corporation  there- 
after a  mere  corporation  of  the  State  of  Indiana,  or  did  it, 
without  losing  its  character  as  a  corporation  of  the  State  of 
Indiana,  become  also  a  corporation  of  the  State  of  Ohio, 
and  entitled  to  enjoy  the  franchises  and  powers  conferred 
upon  it  by  that  State  ?  The  question  came  up  before  this 
Court  in  2  Black.  The  corporation  brought  a  suit  in  its 
capacity  as  an  Ohio  corporation  against  certain  citizens  of 
the  State  of  Indiana.  They  interposed  a  plea  to  the  juris- 
diction of  the  court  claiming  that  the  corporation  was  a 
citizen  of  the  State  of  Indiana,  and,  therefore,  could  not 
sue  the  citizen  of  Indiana  in  a  Federal  court.  Answering 
to  the  plea,  this  Court  said  in  substance  : 

This  body  of  men  have  a  dual  or  double  existence,  and 
they  are  a  corporation  within  the  State  of  Indiana,  under 
the  laws  of  Indiaira.  They  are  also  a  corporation  of  the 
State  of  Ohio,  under  the  laws  of  the  State  of  Ohio.  But 
they  cannot  maintain  their  action,  because  it  is  a  joint 
action  on  the  part  of  both  corporations,  and,  therefore,  they 
must  seek  their  remedy  in  State  and  not  in  Federal  courts. 


39 

Now,  if  the  State  of  Ohio  could  thus  adopt  a  corporation 
of  the  State  of  Indiana,  why  may  not  the  United  States 
adopt  a  corporation  of  any  State  of  the  Union  and  put  it  to 
its  uses  in  carrying  into  execution  laws  constitutionally  en- 
acted by  Congress  for  the  purpose  of  carrying  into  effect 
the  powers  of  the  Federal  Government?  Why  not?  Is 
there  any  impediment  in  the  way  ?  That  is  precisely  what 
was  do.ne  in  the  Central  Pacific  case.  Now,  what  was  the 
condition  of  that  case?  The  Government  proposed  to  es- 
tablish a  post  and  military  road  by  which  the  Mississippi 
Valley  should  be  connected  with  the  Pacific  Ocean.  It 
was  in  time  of  war.  Armies  were  marching  through  the 
Republic.  Blows  were  being  struck  at  the  vitals  of  the  na- 
tion ;  and  it  was  important  that  this  road  should  be  con- 
structed "  on  time,"  to  use  a  railroad  phrase.  What  did 
they  do  ?  They  created  a  corporation  at  this  end  of  the 
line — none  being  here  offering  their  services — to  construct 
and  operate  and  maintain  the  road.  Over  at  the  other  end 
was  a  little  State  corporation  organized  originally  for  the 
purpose  of  building  a  railroad  from  Sacrameuto  to  the  east- 
ern boundary  of  the  State  of  California,  a  distance  of  about 
one  hundred  miles.  It  was  an  insignificant  corporation, 
but  it  was  headed  by  men  of  energy,  zeal,  and  determina- 
tion. Instead  of  creating  a  corporation  at  that  end  of  the 
road  for  the  purpose  of  building  it,  what  did  Congress  do? 
They  found  a  corporation,  organized  under  the  laws  of  Cal- 
ifornia, standing  ready  and  willing  to  be  selected  by  the 
Government  of  the  United  States  as  its  agent,  and  they  se- 
lected it.  In  creating  the  Union  Pacific  they  endowed  it 
with  immortality.  They  annexed  certain  conditions  to  the 
construction  and  management  of  the  road  ;  required  it  to 
be  built  of  a  certain  gauge,  and  to  be  operated  as  one  con- 
tinuous line.  They  authorized  it  and  other  companies  to 
consolidate.  They  conferred  upon  it  divers  powers,  such  as 
are  usually  conferred  upon  corporations  ;  and  finally  pro- 
vided that  all  the  grants  to  the  Union  Pacific  should  inure 


40 

to  the  benefit  of  the  Central  Pacific  upon  their  complying 
with  the  conditions  of  the  act.  The  Central  Pacific  was 
authorized  to  do  what  ?  To  build  a  road  from  Sacramento 
to  the  summit  of  the  Sierra  Nevada  mountains?  No.  But  to 
build  a  road  from  San  Francisco  east  until  it  met  the  Union 
Pacific  buiding  west.  In  other  words,  it  was  authorized  to 
cross  the  boundary  line  between  the  State  of  California  and  the 
Territory  of  Nevada ;  authorized  to  pass  through  Nevada 
into  Utah,  there  to  connect  with  the  Union  Pacific  at  Ogden. 
It  was  authorized  to  build  a  road  in  its  own  State  where  it 
had  no  authority  to  build  under  its  charter.  It  was  autho- 
rized to  build  a  road  in  the  Territory  of  the  United  States 
where  it  had  no  authority  to  build  a  road  under  its  charter. 
It  was  required  to  build  and  maintain  a  road  for  all  time, 
although  it  can  exist  only  fifty  3'ears  under  the  laws  of  Cali- 
fornia. It  was  authorized  to  build  and  maintain  a  link  in 
a  post  and  military  road,  created  and  established  by  the 
Congress  of  the  United  States  in  the  exercise  of  the  powers  of 
the  Government  of  the  Uuited  States  over  the  subjects  of 
commerce  and  war.  Now,  will  the  gentlemen  answer  me 
who  it  is,  and  wholt  was,  that  granted  the  franchise  which  the 
Central  Pacific  Railroad  Company  is  exercising  ?  If  they 
exist  as  a  corporation  in  Nevada  to-day,  they  do  not  so  exist 
by  virtue  of  their  organization  under  the  laws  of  the  State 
of  California.  If  they  exist  as  a  corporation  in  Utah,  it  is 
not  by  virtue  of  the  laws  of  California.  They  exist  there  if 
at  all,  by  virtue  of  their  charter  from  Congress  in  1862 ;  that 
is  their  only  charter;  their  only  authority ;  the  only  thing 
to  which  they  can  appeal  for  protection  in  case  their  rights 
be  invaded. 

Now,  suppose  the  State  of  Nevada  should  come  to  the 
conclusion  that  it  would  be  better  for  that  State  to  put  a 
stop  to  the  Central  Pacific  Railroad.  Suppose  its  legislature 
should  instruct  its  attorney  general  to  institute  proceedings 
by  quo  warranto  for  the  purpose  of  testing  the  right  of  the 
Central  Pacific  Railroad  Company  to  use  the  franchise  it  is 


41 

using  in  the  State  of  Nevada.  Suppose  the  State  courts  of 
Nevada  should  come  to  the  conclusion  that  the  corpo- 
ration is  a  mere  State  corporation ;  that  it  has  no  powers 
or  existence  outside  of  the  State  of  California ;  should 
come  to  the  conclusion  that  it  is  without  a  charter  or  au- 
thority to  exist  or  exercise  franchises  in  that  State,  and 
should  declare  it  to  be  an  usurper,  and  should  enjoin  it 
forever  from  exercising  any  of  the  powers  conferred  upon 
it  by  the  act  of  Congress.  Suppose  that  to  be  done  to- 
morrow; what  would  the  Central  Pacific  Railroad  Com- 
pany say  in  reply  ?  Would  they  appeal  to  their  California 
charter?  No !  No !  California  never  has — never  can — con- 
fer upon  them  the  power  to  exist  and  operate  a  road  in  Nevada 
or  Utah.  To  what,  then,  would  they  appeal  ?  To  the  act 
of  Congress  of  1862,  and  to  tliat  alone.  That  is  their  shield 
and  the  only  shield  that  can  afford  them  any  protection  against 
such  action.  Could  they  not  continue  to  operate  the  road, 
notwithstanding  such  a  judgment  by  a  court  of  the  State  of 
Nevada?  Is  this  Court  willing  to  admit  that  the  State  of 
Nevada  has  the  power,  under  the  conditions  stated,  to 
destroy — not  retard,  embarrass,  delay,  burden — but  actually 
destroy  and  prevent  the  operation  of  the  laws  by  which  Con- 
gress has  sought  to  carry  into  execution  some  of  the  well- 
understood  and  acknowledged  powers  of  the  Federal  Gov- 
ernment. I  imagine,  if  such  a  case  should  ever  occur,  it  would 
result  in  establishing  the  proposition  that  the  Government  of 
the  United  States  may  select  State  corporations  as  well  as 
natural  persons,  and  constitute  them  their  agents  for  the 
purpose  of  carrying  into  effect  the  lawful  orders  of  the  Gov- 
ernment of  the  United  States  in  the  exercise  of  constitutional 
powers. 

The  Chief  Justice— Your  time  has  expired. 

Mr.  Sanderson. — I  want  about  five  minutes  more  to  call 
attention  to  what  this  Court  has  said  upon  this  question 
away  back  in  the  time  of  the  United  States  Bank,  an  insti- 
tution created  on  the  same  principle  that  the  Union  Pacific 
6s 


42 

Railroad  was  created,  except  for  banking  purposes.  Of  the 
$37,000,000  capital  of  that  bank,  only  $7,000,000  was  con- 
tributed by  the  United  States.  That  bank  was  created  for 
the  purpose  of  carrying  into  execution  certain  measures  in 
relation  to  finance  ;  to  assist  in  transmitting  money  north 
and  south,  east  and  west.  It  was  a  mere  financial  agent, 
insignificant  in  comparison  with  the  objects  sought  by  the 
construction  of  railroads  across  this  continent,  by  which  a 
pathway  over  hill,  mountain  and  dale  is  made  for  the  com- 
merce of  the  world.  Now,  what  did  Maryland  do  in  rela- 
tion to  that  bank?  It  imposed  a  trifling  tax  on  paper 
which  that  bank  required  for  the  purpose  of  printing  its 
bills.  Chief  Justice  Marshall  said — not  because  it  pre- 
vented the  bank  from  carrying  out  the  purpose  of  Congress, 
but  simply  because  it  tended  to  that  end — the  existence 
of  such  a  power  in  the  States  would  be  destruction  to  the 
supremacy  of  the  United  States.  That  the  power  to  tax  the 
means  employed  by  wmich  to  carry  into  execution  the  con- 
stitutional powers  of  the  National  Government,was  a  power 
by  which  such  means  could  be  destroyed,  and  therefore 
such  a  power  could  not  be  recognized  as  existing  in  the 
States. 

What  did  Ohio  do?  It  levied  a  license  tax  upon  the 
operation  of  the  branch  banks  in  that  State — precisely  what 
is  being  done  by  the  city  of  Los  Angeles  in  regard  to  this 
railroad,  making  it  pay  a  license  tax  on  every  locomotive 
and  car  passing  through  that  city.  It  was  a  tax  on  the 
operations  or  business  of  the  bank.  What  said  this  Court? 
It  said,  in  effect :  If  you  can  tax  it  one  per  cent,  you  can  tax 
it  two  hundred  per  cent.,  and  thus  make  it  impossible  for  it 
to  carry  on  the  business  for  which  it  was  created.  There- 
fore, we  cannot  recognize  the  existence  of  such  a  power;  it 
is  suicidal,  it  is  fatal  to  the  supremacy  of  the  Government 
of  the  United  States,  and  it  cannot  be  tolerated  or  recog- 
nized at  all ;  not  because  Congress  has  said  so,  but  because 
the  people  of  the  United  States  have  said  the  Constitution 


43 

of  the  United  States  shall  be  the  supreme  law  of  the  land, 
any  law  or  ordinance  of  any  State  to  the  contrary  notwith- 
standing— the  supreme  law,  in  the  presence  of  which  all  the 
States  must  stand  uncovered. 

In  regard  to  the  railroad  cases,  in  which  you  have  de- 
cided that  the  tangible,  visible  property  of  a  railroad 
corporation  does  not  fall  within  the  rule  of  the  cases  which 
I  have  cited,  I  have  to  say  that  in  the  last  of  them  you  have 
expressly  decided  that  a  tax  on  tangible  property  is  not  a 
tax  upon  the  right  of  a  company  to  exist,  the  right  or  fran- 
chise of  the  company  to  do  and  transact  the  business  for 
which  it  was  created.  By  implication  you  hold  that,  had 
the  tax  been  laid  on  these  franchises,  it  would  have  come 
within  the  rule  announced  in  United  States  Bank  cases  and 
other  cases  cited  in  my  brief.  By  implication  as  strong 
and  conclusive  as  positive  affirmation,  you  have  admitted 
that,  if  it  (the  tax)  be  a  tax  on  the  franchise — the  power  of 
the  company  to  exist  and  transact  business  as  a  corpora- 
tion— it  is  within  the  reason  of  the  rule  announced  in  Mc-- 
Culloch's  case,  and  therefore  invalid.  We  rely  upon  this 
implication. 

One  word  in  relation  to  an  error  into  which,  in  my  judg- 
ment, this  Court  has  fallen  in  respect  to  the  power  of  Con- 
gress in  respect  to  the  taxation  of  Federal  agencies  by  the 
States.  Chief  Justice  Chase,  in  the  first  railroad  tax  case, 
said  :  u  In  the  absence  of  any  legislation  by  Congress  pro- 
hibiting the  taxing  of  this  road  or  permitting  it  to  be 
taxed,"  &c.  Here  for  the  first  time  it  is  suggested  by  this 
Court  that  it  is  in  the  power  of  Congress  to  control  this  ques- 
tion of  the  taxation  of  agencies  provided  by  the  Govern- 
ment for  carrying  into  execution  its  powers  ;  that  Congress 
has  the  power  to  permit  the  States  to  tax  them  or  to  pro- 
hibit the  States  from  taxing  them.  I  deny  that  Chief  Jus- 
tice Marshall  ever  conceded  for  a  moment  that  the  Fed- 
eral Congress  had  any  power  on  this  subject;  it  was  held 
to  be  a  purely  constitutional  question,  and  that  the  Consti- 


44 

tution  of  the  United  States  interposed  between  its  agents 
and  the  hostile  action  of  the  States  the  shield  of  its  su- 
premacy. I  deny  the  power  of  Congress  to  yield  and 
resign  to  the  States  the  supremacy  of  the  United  States. 
If  the  States  are  debarred  from  taxing  a  given  thing,  it  is 
by  virtue  of  the  Constitution  of  the  United  States,  and  not 
by  virtue  of  an  act  of  Congress.  If  they  are  allowed  to  tax 
a  given  thing,  it  is  because  they  are  not  forbidden  by  the 
Constitution  of  the  United  States,  and  not  because  they  are 
not  forbidden  by  Congress. 


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